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Bonfiglio v. New York Presbyterian Hospital Weill Cornell Medical Center


June 16, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



On June 19, 2008, the New York Presbyterian Hospital Weill Cornell Medical Center (the "Hospital") terminated Dominique Bonfiglio's employment. On June 30, 2008, Bonfiglio filed a verified complaint with the New York State Division of Human Rights (the "DHR"). Her complaint charged the Hospital with employment discrimination, namely, wrongful termination, based on race and color in violation of New York law.*fn1 The DHR determined that there was "no probable cause" the believe that Bonfiglio's termination constituted unlawful discrimination and dismissed the case.*fn2

Bonfiglio subsequently brought this action alleging that the Hospital violated Title VII of the Civil Rights Act of 1964 ("Title VII")*fn3 and the New York State Human Rights Law ("NYSHRL").*fn4 The Hospital filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The Hospital also opposes Bonfiglio's oral request to amend her Complaint to add a claim under the New York City Human Rights Law ("NYCHRL")*fn5 and an individual defendant. Because Bonfiglio's termination claim has already been decided by the DHR, this Court lacks subject matter jurisdiction over that claim. Because the proposed NYCHRL claim is "based on the same underlying conduct" as the NYSHRL claim, it would also be dismissed for lack of subject matter jurisdiction.*fn6 Furthermore, there is no individual liability under Title VII, which is the only remaining claim. Leave to amend is therefore denied.


Bonfiglio had been working at the Hospital continuously from July 2007, until she was terminated in June 2008.*fn7 Bonfiglio, who is white, alleges that she heard her immediate supervisor, Carmen Zuluaga, an Hispanic woman, make "racist" remarks about Caucasians on two occasions.*fn8 Her co-workers informed her of a third occasion.*fn9 Bonfiglio alleges that she was subjected to other "harassing" treatment such as discriminatory enforcement of break policies*fn10 and an unwarranted negative performance evaluation.*fn11

On June 3, 2008, one of Bonfiglio's supervisors sent her a memo informing her that she had been late to work over twenty times since January 2008. That memo warned her that any future tardiness might result in disciplinary action including termination.*fn12 On June 13, 2008, Bonfiglio was twenty minutes late to work and was therefore terminated, effective June 19.*fn13

On June 25, 2010, Bonfiglio sought relief in this Court, alleging violations of Title VII and the NYSHRL.*fn14 The alleged discriminatory acts were "termination," "retaliation," and "racism and hostile work environment."*fn15 At a conference held on March 10, 2011, Bonfiglio, who appeared pro se but has since retained counsel, orally requested leave to amend her Complaint to add Zuluaga as an individual defendant.*fn16 She also sought leave to add claims under the NYCHRL. Bonfiglio now seeks to add only a retaliation claim under the NYCHRL. On March 17, 2011, the Hospital filed a motion to dismiss the state law claims for lack of subject matter jurisdiction and requested an Order denying Bonfiglio leave to amend her complaint.


A. Lack of Subject Matter Jurisdiction under Rule 12(b)(1)

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."*fn17 The plaintiff bears the burden of proving the existence of subject matter jurisdiction by a preponderance of the evidence.*fn18 "When considering a motion to dismiss pursuant to Rule 12(b)(1), the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff."*fn19 In resolving a motion to dismiss under Rule 12(b)(1), a court is not limited to the face of the complaint and may consider evidence outside the pleadings, including affidavits submitted by the parties.*fn20

B. Election of Remedies

Administrative and judicial remedies "are intended to be mutually exclusive. Once a complainant elects the administrative forum by filing a complaint with the [DHR], that becomes the sole avenue of relief, and subsequent judicial action on the same complaint is generally barred."*fn21 Under the NYSHRL, a "person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such a person had filed a complaint [with the DHR]."*fn22 Under the NYCHRL, a discrimination plaintiff "shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the City Commission on Human Rights or with the State Division of Human Rights with respect to such alleged unlawful discriminatory practice."*fn23 Although the language is nearly identical, the City law must be construed "independently from similar or identical provisions of New York state or federal statutes."*fn24 Independent construction aside, State and City law recognize limited exceptions to the jurisdictional bar. The only exception to the jurisdictional bar is when the DHR dismisses a claim for either administrative convenience or lack of agency jurisdiction.*fn25

C. Amendments to Pleadings

"Rule 15(a) provides that, other than amendments as a matter of course, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."*fn26 "[W]hether to permit a plaintiff to amend its pleadings is a matter committed to the Court's sound discretion."*fn27 The Supreme Court has explained that:

[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason - such as . . . futility of amendment . . . - the leave sought should, as the rules require, be freely given.*fn28

"Where it appears that granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend."*fn29

A proposed amendment is futile when it "adds a claim and party over which the Court lacks subject matter jurisdiction."*fn30 "[A] district court is justified in denying an amendment if the proposed amendment could not withstand a motion to dismiss. The Proposed Amended Complaint may therefore be scrutinized as if defendant['s] objections constituted a motion to dismiss . . . ."*fn31


A. Subject Matter Jurisdiction over State Claims

The parties agree that this Court lacks subject matter jurisdiction over Bonfiglio's NYSHRL and proposed NYCHRL wrongful termination claims because the DHR has already adjudicated wrongful termination.*fn32 Bonfiglio asserts, however, that since retaliation was not specifically addressed by the DHR,*fn33 the jurisdictional bar should not apply to her proposed retaliation claim.*fn34

This argument misconstrues decisions holding that retaliation claims are "separate and distinct" from underlying claims of discrimination.*fn35 Under Title VII and New York State law, a retaliation claim is "separate and distinct" because it alleges adverse actions taken by employers in response to a plaintiff's "statutorily protected activity" such as filing a claim of discrimination.*fn36 While a retaliation claim may have merit independent of the underlying discrimination claim,*fn37 state law "bar[s] a person who has filed a complaint with the [DHR] from filing a lawsuit in this Court based on the same underlying conduct."*fn38 Here the alleged discriminatory act and the alleged retaliatory act are the same -termination. The "underlying conduct" is neither separate nor distinct. Even assuming the truth of the factual allegations in the Complaint,*fn39 this Court still lacks subject matter jurisdiction due to Bonfiglio's election of remedies with respect to her termination claim. Plaintiff's state law claim of retaliation must therefore be dismissed. Finally, Bonfiglio's state law claim of "racism and hostile work environment" is dismissed because the DHR has already considered Zuluaga's allegedly racist remarks and found them to be unsubstantiated.

B. Leave to Amend

1. Retaliation Claim under the NYCHRL*fn40

Rule 15 requires that leave to amend be "freely given" when justice "so requires." Although there is some confusion regarding whether the NYSHRL and the NYCHRL may be construed as identical,*fn41 the language of each statute is unambiguous with respect to the issue addressed here. Once a person has elected the DHR as an administrative remedy and her case was decided, that person is barred from bringing a civil suit absent the statutory exceptions, none of which apply in this instance.*fn42 Adding a claim that cannot survive due to lack of subject matter jurisdiction would be futile.*fn43 Leave to amend to include a retaliation claim under the NYCHRL is therefore denied.

2. Individual Defendant

Once the State claims are dismissed and the City claim is disallowed, only Title VII remains. There is no cause of action against individuals under Title VII.*fn44 Leave to amend to add an individual defendant is therefore denied.


For the foregoing reasons, the Hospital's motion to dismiss Bonfiglio's New York State claims of wrongful termination, retaliation, and hostile work environment/racism is granted. Bonfiglio's request for leave to amend her Complaint to include a City law retaliation claim and to add an individual defendant is denied. The Clerk of the Court is directed to close this motion (docket #11). A conference is scheduled for August 15, 2011, at 4:30 p.m., in Courtroom 15C.


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